mwanahamisi issa makambalo vs republic 2007 tzhc 363 14 september 2007

IN THE HIGH COURT OF TANZANIA AT ARUSHA CRIMINAL APPEAL NO. 121 OF 2006 (ORICINA TING FROM BABA 77 DISTRICT COURT CR.C.34/2005) MWANAHAMISI ISSA MAKAMBALO ... APPELLANT - versus - THE REPUBLIC ................... ........... RESPONDENT J U D G M E N T BWANA. J. 1. The Appellant, fifteen year old Mwanahamisi issa Makambalo, was employed as a house girl at the home of Mary Ndaria (PW1). She got that job with the assistance of Maria Sumawe (PW4). That was on 19 January, 2005. On 24 January 2005, PW1, together with her husband, PW2 and children, left for work and school respectively. The Appellant was left alone at home. When they came back, around 1.30 p.m., the house was closed, the house girl was nowhere to be seen. After waiting for sometime, they decided to break the padlock and get in. To their astonishment, they found the padlock to pw ts bedroom had been broken and the door was ajar, on entering the room they found it to have been ransacked, some of her personal items were missing including clothes and Tshs. 100,000/= cash, that she had kept there, some of the missing items included clothes and shoes belonging to PWTs children and utensils worth Shs. 233,000/ = . 2. The theft was reported to the police and the Appellant was arrested on 31 January 2005. When searched by cpl. Mary, PW5, the Appellant was found in possession of some items that were later to be identified as belonging to PW1. Also she had Shs.82,000/= cash with her. When asked about e.g. the clothes she was found with, she said she was given by a relative who lives in Moshi. However, when that relative was contacted she denied it. 3. in her defence, the Appellant denied to have known or worked as a house girl for PW1. However, she did not know why she was implicated in this particular case. 4. However, although the Appellant denies to have worked for PW1, in her Memorandum of Appeal she raises inter alia the following allegations:- 4.1 That l was employed as a house girl by the complainant (PW1) and I stayed there for 18 months without payment and she was supposed to pay me Shs.8,000/= per month but she didn't fulfill my rights....... she has opened this case so as to make a defence not to pay my money. 4.2 I decided to leave the house because she was not paying me anything according to our agreement. 4.3 The clothes (from PWTs house) that were found in my bag belonged to that family because I lived there as a member of that family. 4.4 The trial judge erred in law and fact to convict and sentence me to five (5) years imprisonment. 5. The Appellant offered no further statements in support of her appeal, counsel for the Respondent was to file her reply by 16 April. She did not do so. 6. These grounds of appeal are not, in my considered view, strong enough, to make this court enter judgment in the Appellant's favour. This is so for the following reasons. 6.1 First, in her defence she denies to have known or worked for PW1. But then when she states (in her Memorandum of Appeal) that she had worked there for 18 months without being paid, this is not only a contradiction but an after thought which was not thought of reasonably. 6.2 Second, while the Appellant claims to have worked for PW1 for 18 months, the evidence on record (by PWs 1, 2, 3 and 4) establish that she began her employment on 19 January and disappeared on 24th. I am of the view that these pw s version on this point is the right one. 6.3 Third, the Appellant admits to have been found in possession of some of the items identified by PW1 and her husband, PW2 as belonging to them. Her version of the story that she was given those items by a relative who lives at Moshi, was denied by the latter. Hence, the principle of "Recent Possession11 implicates the Appellant as being the one who stole those items. 7. it is on record that the padlock to the room was broken and those items stolen from the said room. That act by the Appellant constituted house breaking. Therefore the trial court correctly convicted her of that offence, as concerns the sentences (of 5 years concurrent prison terms), I see no reason to fault the trial courts assessment. They are correct and reasonable in the circumstances of the case. 8. Therefore, considered in its totality, this appeal has Date: 14/ 9/2007 Coram: s. J. Bwana, J. For Appellant: Absent. For Respondent: Mr. zakaria B/c: s.m. Court:- The Appellant can't be traceable for sometime now. Mr. zakaria: I pray that judgment be delivered. Order: Judgment delivered. / ■ r SJB/jn.